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TMI Blog2000 (12) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... e being disposed of by this common judgment. Ashoka Agency had made an application under the Companies Act, 1956 for winding up of the Peerless Consultancy Services (P.) Ltd. By the impugned order the learned trial Judge came to a finding on consideration of the materials that it was a proper case where the parties should be relegated to suit. While holding as such, the learned trial Judge, however, directed the Peerless Consultancy Service (P.) Ltd. to furnish security to the tune of Rs. 1.25 lakhs. Feeling aggrieved by this direction on the Peerless Consultancy Service (P.) Ltd., it preferred this appeal (APO 564 of 2000, ACO 93 of 2000). So far as the other appeal (APO 572 of 2000, ACO 95 of 2000) is concerned, the applicant in the winding up petition has preferred the appeal against the impugned order questioning the same as to why the parties should be relegated to suit when the claim of the applicant-appellant was admitted by balance confirmation, dated 18-4-1991 issued by the Peerless Consultancy Service (P.) Ltd. to the applicant/appellant and in the balance sheet. It was also alleged that question of the relegation to suit in view of the aforesaid admitted fact and also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under sections 433, 434 and 439 of the Act, is basically made for the purpose of winding up of a company provided a company falls under the conditions envisaged in section 433. One of such conditions is section 433( e ), i.e., the company is unable to pay its debts. Therefore, when the Court holds that it is a proper case where the parties should be relegated to a suit and further when the Court is also of the opinion that there are certain issues which can only be decided by adducing evidence, it cannot be said that a company is unable to pay its debts. That being the position and in view of the finding of the learned trial Judge that the right to claim of the petitioning creditor from the Peerless Consultancy Service (P.) Ltd. was rightly challenged, there was no scope for the learned Judge to impose condition for the purpose of relegating the parties to the suit. There is another aspect. It is now well settled law that a company petition cannot be used as a weapon for the purpose of securing a disputed claim which can only be claimed in a suit. Discretion, if any, cannot supersede the legal entitlement. In the case of Mechalec Engineers Mfrs. v. Basic Equipment C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is paid into Court or otherwise secured and given leave to defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. (Emphasis supplied) 4. Applying the condition Nos. ( a ) and ( b ) as noted hereinabove and made in the aforesaid decision of the Supreme Court Mechalec Engineers Mfrs. case ( supra ), we are of the view that when the trial Court has held that the appellant has a good defence, in that case it must be held that the appellant has raised a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positive good defence and accordingly, the appellant is entitled to unconditional leave to defend. Therefore, taking into totality of the matter, we are of the view that the trial Court was not justified, in the facts and circumstances of this case, in imposing conditions regarding furnishing of security for the purpose of relegating the parties to a suit. Accordingly, this appeal (APO 564 of 2000, ACO 93 of 2000) is allowed in part. The portion in which the learned trial Judge has directed the appellant to furnish security is hereby set aside. 5. There will be no order as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company. As on 31-3-1991 a sum of Rs. 2,84,133.15 was due and payable. Two further bill dated 5-4-1991 for a sum of Rs. 77,114 and the other bills dated 22-4-1991 for a sum of Rs. 47,955 totalling to Rs. 1,25,069 became additional dues. By adding the aforesaid two, a sum of Rs. 4,09,202.15 became ultimate dues. According to the appellant, the company paid on 8-4-1991 a sum of Rs. 1,08,969 and on 14-5-1991 a sum, Rs. 76,782 totalling to Rs. 1,85,751. Therefore, upon deducting such sum Rs. 2,23,451.15 became net dues on account of principal sum of price of goods sold and delivered and interest etc. 8. The main attack of the appellant in this appeal is in respect of non-payment of two bills dated 5-4-1991 for a sum of Rs. 77,114 and dated 22-4-1991 for a sum of Rs. 47,955. The learned counsel for the appellant also had drawn our attention to the back page of the photocopy of Sales Tax Declaration Form annexed with the company petition where from we find that these two figures are hand written but without any seal or signature at the end of the same. The lists of purported sundry debtors for the period 1990-91 as on 31-3-1991 are shown by the appellant by which two figures w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,85,751 which was admittedly paid by the company and, therefore, nothing was due and payable. The company filed its balance-sheet before the Registrar of the Companies. The present management took over the control of the company in the year 1992. The purported bills were false and fabricated. In spite of demands the appellant failed and neglected to produce any challan in respect of the supplies of goods to the company. It was also denied that no reply to the notice was made. On top of it, dispute was raised before the trial Court in respect of the authenticity of the appropriate signatory to the balance confirmation dated 18-4-1991. The respondent also took a further point that the case was developed in the affidavit-in-reply but not in the main company petition which is nothing but a counterblast of the defence of the company. The appellant has also tried to develop its case by way of corroborative documentary evidences annexing the same to such affidavit-in-reply. 10. However, since the case was made in affidavit-in-reply, the learned Judge rightly allowed the company to file supplementary affidavit in Court. From such supplementary affidavit some of the important facts ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Utpal Bose, the learned counsel appearing on behalf of the respondent-company contented that : ( a )The ground for obtaining order of admission ought to have been taken in the winding up application itself which cannot be developed subsequently in the affidavit-in-reply on the basis of the defence of the company in its affidavit-in-opposition. ( b )A company Court hearing the application for winding up is not a debt collecting Court. 12. He also cited several judgments. So far as the first point is concerned, he cited a judgment of this Court as in Sulekha Works Ltd., In re AIR 1965 Cal. 98 where it is categorically held: "In a winding up petition grounds and particulars which are relied upon by the petitioner must be set out in petition itself and not in the affidavit-in-reply." (Emphasis supplied) By showing another judgment in G. Claridge Co. Ltd. v. Nav Bharat Investment Ltd. [1977] 47 Comp. Cas. 428 he contended that it is well settled that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the Court may decided it o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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